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People v. Sczepankowski

Supreme Court of New York, Third Department

October 3, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
RICHARD SCZEPANKOWSKI, Appellant.

Calendar Date: September 4, 2013

Michael I. Getz, Greenfield Center, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: Peters, P.J., Rose, Lahtinen and Garry, JJ.

MEMORANDUM AND ORDER

Garry, J.

Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered September 7, 2011, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.

Pursuant to a plea agreement, defendant waived indictment, pleaded guilty to a superior court information charging him with driving while intoxicated and waived his right to appeal, with the understanding that he would be sentenced to 1⅓ to 4 years in prison. County Court thereafter imposed the agreed-upon sentence. Defendant appeals.

We affirm. Contrary to defendant's contention, we find that he made a valid waiver of the right to appeal, as the plea allocution and the counseled written waiver executed in open court demonstrate that he voluntarily, knowingly and intelligently waived the right to appeal his conviction and sentence (see People v Jerome, 98 A.D.3d 1188, 1189 [2012], lv denied 20 N.Y.3d 987 [2012]; People v Martinez-Velazquez, 89 A.D.3d 1318, 1319 [2011]). To the extent that defendant's claim that he was denied the effective assistance of counsel survives his appeal waiver, the claim is not preserved for our review as the record before us does not demonstrate that he moved to withdraw his plea or vacate the judgment of conviction (see People v Lazore, 102 A.D.3d 1017, 1017-1018 [2013]; People v Benson, 100 A.D.3d 1108, 1109 [2012]).

Peters, P.J., Rose and Lahtinen, JJ., concur.

ORDERED that the judgment is affirmed.


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